Ultimate Guide to Winning Your South Florida Pedestrian Injury Claim or Bicycle Accident Lawsuit
South Florida sunshine seekers and fitness enthusiasts know that walking and biking are enjoyable ways to reduce stress, keep in shape, and save money while also helping the environment. Unfortunately, South Florida is practically ground zero for cyclist accidents and pedestrian injuries.
The number of pedestrians hit by cars around Fort Lauderdale and Miami is one of the highest in the nation, and the number of cyclists hit by cars in West Palm Beach, Hialeah, Coral Springs, and elsewhere in South Florida is equally alarming.
Most South Florida pedestrians and bicyclists hit by cars know that they may have a right to collect financial compensation. Unfortunately, many victims lose cases that they should have won.
If you or a family member has been injured by a negligent South Florida driver while walking or cycling, this article can help you recognize your legal rights, familiarize yourself with the Florida injury claims process, and understand how to maximize your chances for fair compensation.
How Common Are South Florida Pedestrian Injuries and Bicycle Accidents?
Tragically, Florida is one of the most dangerous states for pedestrians and cyclists. As far as pedestrians are concerned, California, Florida, Texas, and New York accounted for 42% of all pedestrian deaths in 2016, and Florida has the number one most dangerous metropolitan communities for pedestrians in the United States, according to the Smart Growth America’s Dangerous by Design report.
The Miami - Fort Lauderdale - West Palm Beach areas fall into 11th place in the nation for Pedestrian Danger Index (measured using population size, number of pedestrians, and number of fatalities). Other dangerous South Florida spots for pedestrians (and bicyclists) include Hialeah, Coral Springs, Cape Coral, Port Saint Lucie, and Pembroke Pines.
Looking at dangerous spots for bicycling, in 2015, the Centers for Disease Control and Prevention (CDC) found that Florida had the highest rate of bicycle fatalities in the nation – in fact, more than double the nationwide rate of .23 deaths per 100,000 people.
- A1A and Las Olas Boulevard in Fort Lauderdale
- Pines Boulevard and South Flamingo Road in Pembroke Pines
- SW 117th Avenue and 152nd Street in South Miami-Dade
- Julia Tuttle Causeway drivers trying to get to and from Miami Beach or South Beach
- SW 117th Avenue and Kendall Drive in West Kendall
- Brickell Avenue Bridge
- NE 2nd Avenue and 36th Street in midtown Miami
- NE 1st Avenue and NE 6th Street in downtown Miami
- NW 87th and 36th Street in Doral
- South Dixie Highway (US-1) intersections south of I-95 around Coconut Grove and Coral Gables
- Alton Road and Dade Boulevard in South Beach
What Causes Pedestrian Accidents and Cyclist Injuries?
Automobile-related pedestrian accidents and cyclist injuries and deaths are a growing problem. Most are caused when motorists fail in their duty to share the road, or act negligently by:
- Ignoring traffic signs and signals
- Making unsafe lane changes
- Driver distraction
- Driving under the influence
- Driver inattention
- Driving while fatigued
- Failing to yield
Driver distraction is an obvious cause of pedestrian and cyclist accidents. When drivers text, email, view their GPS, talk on the phone, watch or film videos, spill food or drinks, reach for objects, or otherwise allow their attention to be diverted away from the road, nearby motorists, pedestrians, and cyclists are placed in significant danger.
In 2016, NHSTA reported 3,450 distracted driving related deaths. According to the CDC, distracted driving causes approximately nine deaths and more than 1,000 injuries in the U.S. each day. One out of every four U.S. car accidents is caused by texting while driving. The National Safety Council reports that texting and driving causes 330,000 injuries each year. Data from Virginia Tech Transportation Institute shows that using a handheld phone while driving increases a driver’s crash risk threefold.
Driver drowsiness, drunk driving, and speeding are also common causes of pedestrian and cyclist injuries and deaths. In 2016, NHSTA reported 803 drowsy driving related deaths, 10,497 drunk driving related deaths, and 10,111 speeding related fatalities.
In fact, the majority of 2015 pedestrian fatalities occurred in high-traffic travel lanes (72%), with only 18% of fatalities occurring in intersections, and 10% occurring in driveways or shoulders outside of travel lanes.
But drivers aren’t always the only ones at fault. Poor city planning, construction site errors, and faulty maintenance of private property contribute to more and more automobile-related pedestrian and cyclist injuries and deaths each year.
Pedestrian injuries and cycling accidents are also caused by:
- Broken pavement
- Lack of crosswalks, sidewalks, or bike lanes
- Unsafe intersections
- Construction debris
- Automobile defects
Florida State counties and cities are responsible for maintaining roads, bridges, and public paths. Potholes, negligent maintenance of a roadway or shoulder, dangerous drainage or grating, dangerous manhole covers, poor crosswalk placement, and faulty signal timing can all be reasons a government entity could be held liable along with the driver for your accident and the subsequent injuries.
Likewise, construction companies are responsible for construction site mishaps, misplaced equipment, and failure to post proper warning signs. Property owners can also cause automobile-related pedestrian and cyclist accidents when they fail to maintain safe and clear sidewalks and roads. Even an auto repair company could be liable if a recent repair flaw contributed to the injury.
A pedestrian or cycling accident can leave you with serious or catastrophic injuries. These injuries can require a lengthy recovery time during which you may be unable to work and earn the money you need to pay your bills. Personal injury law exists to protect your rights to pursue compensation for your losses when you have suffered harm due to another person’s carelessness.
Did a South Florida Driver’s Negligence Cause Your Bike Accident or Pedestrian Injury?
Many people do not realize that Florida law recognizes unmarked crosswalks, and that a driver is responsible for avoiding a pedestrian even outside of a crosswalk. We have successfully represented numerous pedestrians who were hit while walking outside a crosswalk because the negligent driver was at fault.
Similarly, some bicyclists think that they cannot file a personal injury claim because they were cycling at night without reflectors, or because they were injured while riding in a construction zone. Again, this is not necessarily true.
Each case involving a pedestrian or cyclist has its own unique and very diverse set of circumstances. These cases should be investigated by a Board Certified Civil Trial Attorney who has handled numerous similar cases.
Duties of Drivers, Cyclists and Pedestrians
Every driver has a legal obligation to act prudently in order to help keep our streets safe. Under Florida law, motor vehicle operators have a duty to “exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.” (Fla. Stat. §316.130(15)).
Drivers have a higher duty of care when children are present, such as when driving near playgrounds, schools, or residential areas.
Some of the most common cases of driver negligence involve:
- Driving under the influence of drugs or alcohol
- Disobeying traffic signs and signals
- Driving while distracted
- Driving while drowsy
- Failing to use turn signals
- Failing to yield to pedestrians
- Ignoring passing and merging rules
- Ignoring dangerous weather conditions
- Ignoring school zones
Pedestrians and cyclists also have a duty to act prudently. Under Florida law, pedestrians must obey traffic signals, use crosswalks and sidewalks when available, and stay out of the road whenever possible. (Fla. Stat. §316.130).
This issue is complicated by the fact that Florida recognizes unmarked crosswalks. In addition, even if a pedestrian is violating a traffic ordinance, drivers must still exercise due care to avoid hitting the pedestrian. This is why the motor vehicle driver in every pedestrian case that I have ever handled was found partially or fully at fault for the crash.
As for bicyclists, under Florida law: “Every person propelling a vehicle by human power has all of the rights and all of the duties applicable to the driver of any other vehicle…” Cyclists are responsible for using bike lanes when available or staying as close to the right-hand curb or road edge as practicable except when passing, preparing for a left turn, riding on a one-way highway with two or more marked traffic lanes, or when necessary to avoid an accident. Florida law also requires bicycles used at night to be equipped with a front lamp, rear lamp, and rear reflector to help decrease the chance of injury for drivers, pedestrians, and other cyclists (Fla. Stat. §316.2065).
Unfortunately, even when bicyclists do everything possible to stay safe, they are often struck by inattentive drivers. When a driver breaches the duty to use due care and caution on the road, and that breach causes injury to another, the driver is liable for negligence. In order to win a personal injury lawsuit, an injured pedestrian or cyclist must prove two elements of negligence by the greater weight of the evidence.
- The Defendant breached the duty to exercise due care, and
- That breach directly contributed to the injury
While this may seem simple to prove in your specific situation, the real challenge comes when the insurance company seeks to undermine your claims, or seeks to leverage a superior financial position against an injured pedestrian or cyclist.
South Florida personal injury cases involving pedestrians or cyclists can be complex. They require foundational knowledge of personal injury law, high-level investigative resources, and medical and engineering expertise.
Injured pedestrians and cyclists may have to go up against billion-dollar insurance companies, massive construction companies, or sovereign government entities. These defendants have deep pockets and can afford prominent legal teams willing to do what it takes to avoid responsibility for negligence.
Should You Settle or Go to Trial?
When a human body is hit by a motor vehicle, the resulting injuries are often severe. Bone fractures, spinal cord fractures, internal bleeding, head injuries, and internal organ damage, are some of the most common. These injuries can lead to permanent brain damage, paralysis, loss of limbs, and disfigurement, in some cases requiring full-time care.
Often, insurance companies are willing to pay a sum of money to end the case without going to trial. However, they would prefer to pay later rather than sooner, and they can afford to drag out litigation in the hopes that injured plaintiffs will run out of money and settle for less.
In addition, insurance companies will often try to take advantage of injured victims who are unfamiliar with the personal injury claims process, offering low settlement amounts that victims may accept because they don’t realize how much more they may be entitled to.
Some attorneys who represent injured victims prefer to settle quickly; this way, they spend far less time working on the case. In addition, lawyers who go to trial face a serious financial risk: they may lose all the money spent on medical and engineering experts, as well as other court costs.
However, if an attorney is not willing to go to trial, the insurance companies know they can settle the case for a tiny fraction of what it would be worth in the hands of an attorney who is willing to do the work and take that risk.
A good attorney knows the defense’s case as well as the plaintiff’s case, and will be able to determine whether going to trial is indeed the best option for you.
3 Steps to Winning Your South Florida Pedestrian Injury Lawsuit (or Bicycle Accident Claim)
You need to protect yourself as soon as possible after a pedestrian injury or cyclist crash.
Step 1: Contact a South Florida Board Certified Civil Trial Attorney Who Handles Injury Cases
Any pedestrian or cyclist who is injured by a motor vehicle should immediately consult with a Board Certified Civil Trial Attorney who has handled cases involving pedestrian injuries or cycling accidents. The guidance of a pedestrian accident lawyer is critical. Reporting your concerns to insurance representatives or others before speaking with an attorney can seriously jeopardize your rights. Your lawyer is there to protect you.
Initial consultations with our South Florida bicycle injury attorneys and pedestrian accident lawyers are free, with no obligation to pursue a claim. If you are unable to speak with a lawyer due to your injury, a family member can initiate this conversation for you.
Step 2: Gather Evidence
The investigation is best handled by a competent attorney working with experienced investigators. As soon as possible after your accident, you need to make sure that someone is gathering evidence of the circumstances of the accident and your injuries.
Write or verbally record everything you can recall about the incident, including anything that happened immediately before and immediately after. If a bicycle is involved, you must not repair or alter the bicycle until it can be inspected by your attorney’s forensic team.
Obtain the names and phone numbers of all involved in the accident as well as any witnesses. Take pictures or video of your injuries, the accident scene, and all vehicles involved in the accident (including license plate numbers). Be sure to keep a log of any receipts or payments relating to medical costs.
Likewise, keep copies of your employment hours worked before and after the injury, and any changes in salary.
A Board Certified Civil Trial Lawyer who specializes in pedestrian and cycling cases will have access to a skilled investigative team. These professionals will help gather security camera footage, defendant phone records, police reports, defendant blood alcohol content (BAC) test results, medical records, witness testimony, and other important components of your case.
Step 3: File a Lawsuit for Financial Compensation
Florida is a “no-fault” state. This means that no matter who is found to be at fault for an accident, the insurance company for the driver pays for a certain amount of the resulting damage or injury. Florida drivers are required to have personal injury protection (PIP) that covers at least $10,000 per person, per accident. PIP insurance normally covers 80% of medical costs and 60% of any lost wages up to the $10,000 (or the policy limit). PIP insurance will not compensate an injured party for pain and suffering.
However, when a pedestrian or cyclist suffers serious injuries, Florida personal injury law allows fuller and fairer compensation. Under Fla. Stat. §627.737, a “serious” personal injury is any injury that results in:
- Significant and permanent loss of an important bodily function
- Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement
- Significant and permanent scarring or disfigurement, or
Our personal injury lawyers take cases on contingency. This means we do not get paid unless, and until, you win your case.
Statutes of limitations can be complex for cases involving pedestrian accidents or cyclist injuries. Under Fla. Stat. §95.11, injured parties must file personal injury lawsuits within four years of the date of the injury. Wrongful death lawsuits involving pedestrian injuries must be filed within two years. If the accident involves a state, county, or government agency, the statute of limitations can be shorter.
Remember, statutes of limitations are subject to change and exceptions may exist depending on your specific case. A pedestrian accident lawyer or bicycle injury attorney can help you determine the statute of limitations for your case.
You should not try to use this article to make a decision on whether your statute of limitation has expired or when it expired. You need an attorney to look at all the circumstances of our case.
What Compensation Is Available for Pedestrian Injuries and Bike Accidents?
Winning a Florida personal injury lawsuit can mean collecting financial compensation to cover both economic harm, such as medical bills and lost wages, and other non-economic harms, such as scarring, disfigurement, disability, and other ways in which the injuries have affected your ability to live.
- Lost wages
- Medical expenses (past and current costs related to injury)
- Property damage
- Future medical expenses
- Rehabilitation costs
- Future lost earning capacity
- Caregiver costs
- Pain and suffering
- Mental anguish, anxiety or depression
- Loss of consortium (companionship)
- The loss of the ability to enjoy life as before
In cases where the accident causes death, the family may be able to recover significant wrongful death damages. Legal survivors are entitled to full financial compensation for any economic losses caused by the death (loss of financial support and services, funeral and burial expenses), plus damages to cover loss of parental care and/or companionship.
How Does the Court Calculate My Compensation Amount?
Historically, the law takes the level of severity and long-term consequences of your injuries into account. The law requires higher levels of financial compensation for more severe and permanent injuries.
In calculating future medical expenses, the jury will consider the cost of probable future hospitalizations, doctor visits, and medications throughout the rest of the injured party’s lifetime. In addition, the jury will consider how much in-home care, medical treatment, and rehabilitation will be required.
The jury will also consider evidence on the injured party’s ability to return to work at the salary they were paid prior to the accident, and whether future earning capacity will be affected.
For pain and suffering, the jury may consider the severity of the pain or suffering, the length of time the victim endured the pain or suffering, and how disabling the pain or suffering is. The jury may consider evidence on the extent to which the injuries interfered with the ability to live as before. Loss of consortium damages may be granted when parents, spouses, or children lose the level of support, intimacy, and companionship they had before the injury occurred.
In many cases, the younger the victim, the higher the settlement or jury verdict will be. But this is not always the case. Recently, we were able to secure a $2,000,000 verdict from a Broward County jury for clients in their nineties.
The defendant in that case didn’t make things easy. The truck driver claimed that the pedestrian suddenly stepped into the street, outside of the crosswalk.
To prove that the driver was at fault, we tracked down the truck (which was sold to an out-of-state buyer immediately after the accident), and discovered that it had aftermarket parts that allowed it to go much faster than usual. In this case, we brought a treadmill into the courtroom and used it with the defense expert to prove that the crash had not happened in the way the defense claimed.
What If I Contributed To My Own Accident?
You can still collect financial compensation under Florida’s comparative negligence law. In many cases we handle, there are multiple negligent parties.
Under Florida’s comparative negligence law (Fla. Stat. §768.81), each defendant who is found to be at fault for your injuries is assigned a percentage of fault. Because of this law, our attorneys work to identify every possible defendant that may have contributed to our clients’ injuries.
Perhaps a driver glances down to look at his phone while a forklift driver on a construction site backs up too far into the road. Because the driver of the car wasn’t paying attention, he bumps the forklift, loses control, and then hits a pedestrian walking on the sidewalk.
In this case, the driver of the car, the forklift driver, and the construction company could be liable for injuries caused to the pedestrian.
In the above case, the court may find the car driver 80% at fault for not paying attention, and the construction company (and forklift driver) 20% at fault for backing into the road. If the pedestrian’s damages were determined to be $1,000,000, the driver of the car would have to pay 80% of that ($800,000) and the construction company would pay the remaining 20% ($200,000).
Comparative negligence applies even if the injured victim was also negligent. Say a cyclist is riding at night without reflectors. Meanwhile, a driver has been traveling cross-country and decides not to stop for sleep in order to make up for lost time. After driving for 20 hours straight, the sleepy driver runs into the cyclist. In this case, the driver can argue that the cyclist contributed to the accident by not making herself visible while cycling at night.
Under Florida’s comparative negligence law, the court may find that the driver was 50% at fault, while the cyclist was 50% at fault for not using reflectors. Therefore, the cyclist would receive 50% of the calculated damages (instead of 100%).
These types of cases can be incredibly complex. Even with catastrophic injuries and a clearly liable defendant, compensation can be very low or even nothing at all. To get full and fair compensation, you need a real trial attorney.
How to Find the Best Pedestrian Injury Lawyer or Bicycle Accident Attorney
Selecting your lawyer could be the single most important decision you make. The right lawyer can mean the difference between a successful personal injury claim, and significant loss of your right to financial compensation.
What does a pedestrian accident lawyer or bike accident attorney do?
A Board Certified Civil Trial Lawyer who handles injury cases understands and helps their clients with:
- Funding the case, including world-class engineering and medical experts
- Presenting the case effectively to a jury
- Explaining the complexities of personal injury laws
- Understanding the detailed procedures and statutes of limitations involved
- Gathering evidence from the defendants
- Strategizing the best way to present your personal injury claim based on the evidence
- Locating and exposing weaknesses in the defense
- Maximizing full and fair financial compensation
Here are four factors to consider in hiring an experienced South Florida pedestrian accident lawyer or cyclist injury attorney:
#1. Relevant Experience
Look for a Board Certified Civil Trial Attorney who has litigated, and gone to trial, in these kinds of cases.
#2. Access to Experts
World-class medical and engineering experts are vital to winning these cases and maximizing your financial compensation. Your lawyer must be willing to find, hire, and pay for the most qualified experts to examine and testify in your case. Our firm pays our clients’ legal expenses up front, with no repayment unless, and until, you win your claim.
#3. Industry Recognition
An experienced pedestrian accident lawyer or cyclist injury attorney will be one who is recognized for their accomplishments. Awards like Best Lawyers in America and Florida Super Lawyers are good examples of peer reviewed recognition. Look for a high-level Martindale Hubbell AV rating, Board Certification as a Civil Trial Specialist and an AVVO “Superb” Rating.
#4. Willingness to Go to Trial
Many inexperienced personal injury lawyers may simply file your case and hope the insurance company wants to settle out of court. Your case is worth more if you have a lawyer who has proven that he or she is willing to go to trial.
At Kelley/Uustal, we have developed a unique forensic discovery investigative process, and we train very specific trial skills in our own courtroom. In my experience, when a pedestrian or bicyclist gets hit by a vehicle, it is almost always at least partially the fault of the vehicle driver. We have never lost one of these cases.
Hopefully, you will never need a South Florida pedestrian injury lawyer or South Florida bicycle accident attorney.
If you do, I hope you find the information provided here helpful. For more information on maximizing compensation for your pedestrian accident claim or bicycle injury suit, download our free Guide to Florida Pedestrian & Cyclist Injury Lawsuits. You might also find our video on Auto v. Pedestrian or Cyclist Injuries helpful in preparing for your case.
More Questions About Your Pedestrian Accident Claim or Bicycle Injury Lawsuit?
If you have further questions about filing a pedestrian injury claim or bicycle accident lawsuit, please call John Uustal at [tel].
We represent clients located in Fort Lauderdale, Miami, West Palm Beach, Hialeah, Coral Springs, Cape Coral, Port Saint Lucie, Pembroke Pines, Marathon, Key Largo, Miramar, Coral Springs, Pompano Beach, across the state of Florida, and around the world. Our goal is to hold negligent parties accountable and so that our clients get maximum compensation.